Suchitra Kalyan
Mohanty and Vinodhini
New Delhi, July 2: It is now not a criminal offence to be gay. A landmark ruling by Delhi high court on Thursday redefining Section 377 of the Indian Penal Code, which has been on the statute book for 149 years, means India will join 126 other progressive nations which have decriminalised homosexuality.
Delivering its order after hearing a petition by the Naz Foundation, a two-judge bench comprising Chief Justice A.P. Shah and Justice D. Murlidhar ruled that consensual sex between two adults of the same sex cannot be considered a criminal act. It held that the IPC provision making it a criminal offence violated the fundamental rights of life, liberty, equality and non-discrimination.
In its judgment, the court emphasised that "inclusiveness" was a basic tenet of the Constitution and that "deviants" or "different" people were not to be left out of its ambit.
Tasting victory after a seven-year legal battle, a large number of gay rights activists spontaneously reacted in joy as the judges said: "We declare (that) Section 377 of the Indian Penal Code, insofar as it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14, and 15 of the Constitution."
While some people were astounded, some cried and others hugged and kissed each other. No one waited to celebrate as several Indian and foreign activists shouted slogans and held up placards saying "377 quit India" just outside the court premises.
"I am happy that gay people have got their right to sexual preference and the right to life and liberty and they can lead a dignified life," said Anjali Gopalan of Naz Foundation, which had filed the petition seven years ago seeking the scrapping of Section 377.
The ruling comes in the wake of political wrangling. In its affidavits before the court, the Union home ministry had opposed the petition, saying Section 377 had been generally used in cases of child sexual abuse and for complementing lacunae in rape laws.
However, the Union health ministry had said that decriminalising consensual same-sex activity would help stop the spread of HIV/AIDS in the community. Home ministry officials present in court, however, refused to comment on whether the order would be challenged in the Supreme Court. Union home ministry P. Chidambaram had said on Wednesday that there could be "new thinking" on the issue.
The court also clarified that while the police would no longer be able to arrest adult homosexuals having consensual sex, Section 377 will continue to apply for those indulging in non-consensual and non-vaginal sex, including any such act with minors. "Anybody above 18 would be considered an adult and the clarification will remain in effect till Parliament chooses to amend the law. No cases involving Section 377 which have attained finality will be reopened," the high court bench said.
The judges quoted Jawaharlal Nehru to emphasise that it was the spirit and not necessarily the letter of the law that was important while granting equal rights to citizens. It added that the underlying theme of the Indian Constitution was "inclusiveness". The court said: "Those perceived by the majority as ‘deviants’ or ‘different’ are not on that score excluded."
Further, the court held, Indian constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who lesbians, gays, bisexuals or transgenders are. Ever since the 1980s, similar laws have been struck down by the courts in the United States, Britain, Australia, South Africa and several other countries.
